New guidance from CDC provides model for OSHA compliance

The Centers for Disease Control and Prevention, and The Cybersecurity and Infrastructure Security Agency, have just issued a new Interim Guidance Document titled “Implementing Safety Practices for Critical Infrastructure Workers Who May Have Had Exposure to a Person with Suspected or Confirmed COVID-19.”

Among those covered as “critical infrastructure workers” are workers in “food and agriculture, critical manufacturing, informational technology, transportation, energy and government.” This is very useful guidance because it provides a model for employers to follow when dealing with known COVID-19 exposure cases. Implementation of these recommended measures will afford employers with a cogent response should the Occupational Safety and Health Administration begin an investigation of employee complaints that employers are not adequately protecting them against the spread of COVID-19.

Please understand that the information about COVID-19 and the government’s recommendations for mitigating its spread evolve almost daily. But as of April 8, the CDC and CISA, and therefore OSHA, suggest the following precautions for an employee who has had a potential exposure but is still asymptomatic:

• Take the employee’s temperature and assess the employee’s symptoms before the employee enters the facility.

• While the employee is still asymptomatic, have him or her self-monitor under the supervision of the employer’s occupational health program.

• Require the employee to wear “a face mask,” presumably at least a surgical mask or other face covering that has not been approved by the National Institute for Occupational Safety and Health, while at work, for 14 days.

• Maintain distancing of at least six feet “as work duties permit in the workplace.”

• Routinely disinfect and clean offices, bathrooms, common areas, and shared electronic equipment.

If the employee becomes sick or symptomatic, he or she should be sent home immediately. The work area where the sick employee was working should be cleaned and disinfected.

Employers are also advised to identify any other employees who, within two days of the symptoms’ surfacing, had close contact within six feet of the sick employee. The CDC does not say that such potentially exposed employees must be quarantined, but rather identified and monitored.

The April 8 Guidance Document also references an earlier CDC Guidance Document, titled “Interim Guidance for Businesses and Employers to Plan and Respond to Coronavirus Disease 2019 (COVID-19),” which has been updated as of March 21.  In addition, OSHA is still relying on its March 9 “Guidance on Preparing Workplaces for COVID-19” as the framework for employers to follow in developing and implementing their plans for mitigating the spread of COVID-19. Under OSHA’s Guidance Document, it is suggested that employers should first identify which of four levels of worker exposure is presented at the workplace, including a job-specific or work-station-specific analysis, and then based on the level of risk, develop and implement control measures, ranging from engineering controls (such as plexiglass screens) to administrative controls (such as encouraging sick employees to stay home), as well as safe work practices (such as hand-washing and physical distancing), and personal protective equipment (increasingly, dust masks if not N95 respirators). The selection of control measures will depend on the circumstances that exist at individual workplaces.  OSHA has also provided a poster identifying 10 steps for employers to take in their COVID-19 mitigation efforts.

Lessons learned

With OSHA’s April 8 News Release advising employers not to retaliate against employees who report what employees believe to be unsafe conditions during the Coronavirus Pandemic, this is a good time for employers to measure their COVID-19 mitigation plans against these CDC/CISA/OSHA Guidance Documents. Employers should also take into consideration state and local laws, which may place greater restrictions than those outlined by the CDC or OSHA. Additionally, other federal, state, and local laws may be implicated by the implementation of these guidelines, for example, temperature taking.

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